WorkSafe v Ducon Pty Ltd (2016)

Facts

On 5 April 2012, a concrete pumping truck set up its outriggers on a capping beam next to a construction site where Ducon Pty Ltd was principal contractor for a 36-storey apartment building project. Within the capping beam was a ventilation shaft that Ducon had covered with a 100mm layer of concrete. This was done to prevent people from falling into it, but was deemed unsafe because it could be penetrated by heavy plant, and because this risk was not identified in any way.

The left rear outrigger of the concrete pumping truck penetrated the shaft, causing the truck to tip over and the boom to come down, hitting an adjacent scaffold. A worker standing on the scaffold suffered serious injuries, including a fractured spine.

WorkSafe Victoria alleged that the employer breached the Occupational Health and Safety Act 2004 (Vic) (OHS Act) by failing to visually identify and/or barricade the
location of the ventilation shaft.

Judgment

The Court found there was a real and obvious risk of serious injury or death to a person if the shaft was penetrated. Ducon was found guilty and fined $50,000 plus costs of $20,000.

Lessons

Employers must ensure they do not create further hazards or risks in the working environment; in particular, risks that are obscured from others.

If such risks are created, it is critical they be clearly identified and that other controls are put in place, such as warnings, barricades and exclusion zones. It is also critical to communicate the existence of risk to others.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.